The Death Star of American corporations, Wal-Mart, has decided to contest a minor fine from OSHA. In doing so, the Arkansas based company has amassed $2 million in legal fees, according to the NY Times.
The $7,000 fine from OSHA was for the trampling death of a Wal-Mart employee , crushed by a surging mob of customers outside a Long Island Wal-Mart the day after Thanksgiving, 2008.
And BTW, they are using Teabagging Konstatooshunull Lawe (sic) to argue, OSHA lacks the authority to issue fines in the first place
Follow me below the fold for more details:
Perhaps you remember the incident. Wal-Mart, like most Big Box retailers, holds these Black Friday sales the day after Thanksgiving. Maybe this dates me, but I don't remember the day after Thanksgiving as a huge shopping day that it is hyped into today. But I digress...Wal-Mart was advertising a limited number of specials, offering huge discounts to lucky shoppers on televisions, personal computers, video game systems, etc.
What came next was both predictable and preventable, but Wal-Mart, the cheapskates, that they are, refused to pay for security outside the store and the result was an anxious, unpredictable mass of people all hell-bent on getting a bargain, and if they step on someone — like the cleat-wearer who spikes Moe in the Simpsons during the Malibu Stacy sale — so beat. They did, and a young man died because Wal-Mart wanted to save a few bucks.
OSHA levied the $7,000 fine in response to the death of Jdimytai Damour, a 34-year-old temporary employee, who died from asphyxiation when a stampede of post-Thanksgiving shoppers at a Wal-Mart store in Valley Stream, N.Y., busted through the doors and trampled him just before the store’s 5 a.m. scheduled opening. The crowd, estimated at 2,000 people, had been lined up for hours near a handwritten sign that said “Blitz Line Starts Here.”
But we're not responsible.
Snip.
It is revolting that they caused this, and more so that they are contesting a tiny fine. But quite possibly the most disgusting aspect of the tragic death of Mr. Damour, is that Wal-Mart is using cherry-picked Tea Bag constitutional law:
Wal-Mart has filed motions that sought to block the penalty by claiming inconsistent enforcement by OSHA and by questioning the constitutionality of using the “general duty” clause in this case. Wal-Mart also sought to subpoena witnesses to explore the exact cause of Mr. Damour’s death when OSHA said the main issue was the unmanageable crowd.
The argument is that OSHA lacks the authority to issue fines, despite being created and authorized by Congress to do just that:
29 U.S.C. § 654, 5(a)1: Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
In other words, let's spend $2 million in legal fees (which we of course can deduct from our [paltry]taxes) to fight a fine that even if it were applied to every single Wal-Mart store would still be a pittance.
Labor Department officials complain that over the last five months 17 percent of the available attorney hours in the department’s New York office have been devoted to the case, consuming the equivalent of five full-time lawyers.
OSHA officials say they have rarely seen a company mount such a huge and expensive defense to a fine of less than $10,000.
Since the teabaggers and corporate Republicans alike both hate the concept of medling government agencies, they really want nothing more than to eliminate OSHA, the EPA, FDA, etc. And if — in the words of Rand Paul — accidents happen, shrug your shoulders, blame the victims, and refuse to acknowledge responsibility.
Wal-Mart’s all-out battle against the relatively minor penalty has mystified and even angered some federal officials. In contesting the penalty, Wal-Mart has filed 20 motions and responses totaling nearly 400 pages and has spent at least $2 million on legal fees, according to OSHA’s calculations.
The dispute has become so heated — and Wal-Mart’s defense so vigorous — that officials at OSHA, an arm of the Labor Department, complain that they have had to devote huge numbers of staff time to the case, including 4,725 hours of work by employees in the legal office.
The company has made so many demands that Labor Department officials said they would not discuss the case except on condition of anonymity because they feared being subpoenaed about their discussions with a reporter.
Wal-Mart is making a calculated risk to make even the most minute fines levied by OSHA so costly that the corporate bohemoth would win a war of attrition. The implications are scary for the American worker because they may make OSHA so afraid to issue fines for minor infractions that work will just become much more dangerous, especially at Wal-Mart.
We are talking about a man dying because of an occupational hazzard. You can debate the semantics of what the term means in OSHA language or what Wal-Mart's legal obligations are. However, the fact is that Mr. Damour was outside, in effect attempting to manage or control the crowd. This, he was doing at the behest of his employer, Wal-Mart. To me that makes it an "Occupational hazard." It doesn't matter that it is only a once a year occurance or weekly or daily. A hazard is a hazard is a hazard.
In May 2009, OSHA accused Wal-Mart of failing to provide a place of employment that was “free from recognized hazards.” Specifically, the agency said the company violated its “general duty” to employees by failing to take adequate steps to protect them from a situation that was “likely to cause death or serious physical harm” because of “crowd surge or crowd trampling.”
Wal-Mart, the world’s largest retailer, says that regulators are trying to enforce a vague standard of protection when there was no previous OSHA or retail industry guidance on how to prevent what it views as an “unforeseeable incident.”
So thousands of people lined up without any police presence, each individual poised to snap up one of the few bargain priced lap-tops or plasma televisions is not a foreseeble incident. In response to the corporate gobby-gook from Wal-Mart I have three words: Cincinnati Who Concert.
In 1979, the Who played a concert at Cincinnati Gardens, a hockey arena. A festival-style general admission ticket policy was in effect, meaning seats were first come, first serve. Sadly, only one door was open for thousands of fans mistakenly thinking the concert had started (it was sound check). Eleven people were killed in the stampede, with the band unaware of until the end of the show.
Wal-Mart argues OSHA is creating new law. I would argue that Wal-Mart created a new occupational hazzard, necessitating the action by OSHA.
OSHA officials acknowledge that the agency is seeking to establish for the first time that an unruly crowd is an occupational hazard that can cause death or serious injury — and that employers must therefore develop plans to protect workers against such a hazard.
But federal officials say that in its settlement with Nassau County prosecutors, Wal-Mart had in effect already admitted that it had that responsibility and agreed to three years of monitoring. So OSHA officials question why the retailer is putting up such a fight.
OSHA officials also note that the National Retail Federation issued detailed new guidelines last fall called, “Effective Crowd Management: Guidelines on how to maintain the safety and security of your customers, employees and store.”
And then they ignore them.
Snip.
“They don’t want to take responsibility realistically for what they did,” said Kenneth M. Mollins, a lawyer who represented an injured Valley Stream customer who sued Wal-Mart. “They paid all the money to settle with the district attorney to prevent a potential indictment.”
Actually, I think they paid the fine, so that any potential evidence in the indictment would also have been available to any lawyer suing Wal-Mart for injuries caused in the death of Mr. Damour.
Wal-Mart officials worry that if the OSHA Review Commission upholds the $7,000 penalty and concludes that surging crowds are an occupational hazard, then OSHA will then be free to look over Wal-Mart’s shoulder whenever it has a big sale to make sure that it has taken adequate steps to control crowds.
The company is also concerned that it could face far larger fines if OSHA ever concluded that it again violated its crowd-control responsibilities. Under OSHA rules, $7,000 is the maximum fine for a serious violation, but it can impose a $70,000 fine for a willful violation.
They can say it, and useful idiots like Steven Greenhouse of the New York Times can believe it, but that does not make it so.
Wal-Mart is fighting OSHA for the very authority to do its job. Wal-Mart is saying that not only is it illegal for OSHA to fine them, but that not even the on-the-job death of an employee warrants an investigation.
Fuck Wal-Mart!
UPDATE:
I forgot to mention, a big point. The Corporate lobbyists polluting Congress succeeded in creating the maximum fine for a foreseeable death at $7000. A "willful" death is only a $70,000. Look I see how a $7K fine might wipe out a tree removal company with two trucks, but we're talking about Wal-Mart here. I have no doubt that the Chamber of (horrors) Commerce put on the full-court press to Congress, saying small businesses would go under....But what they were really doing was the bidding for Wal-Mart, Home Depot (which has had a number of fatal accidents both to employees and customers), and others to make even the death of an employee, a microscopic fine.
Basically, our government is concluding the death of an employee on the job is only worth a $7K fine, and that is almost as disturbing as Wal-Marts pathological need to contest it.
UPDATE 2:
Thank you for everyone that recommended my diary. It's been a while since I had a recc'd diary, and I haven't been writing as regularly here in the past six months either.